Ergo Architecture & Interiors v Waverley Council

[2007] NSWLEC 331

Land and Environment Court

of New South Wales

CITATION:

Ergo Architecture & Interiors v Waverley Council [2007] NSWLEC 331

PARTIES:

APPLICANT
Ergo Architecture & Interiors

RESPONDENT
Waverley Council

FILE NUMBER(S):

10167 of 2007

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Amend condition requiring deletion of garage to duplex, alterations to building structure, streetscape.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996

DATES OF HEARING:

29/05/2007

EX TEMPORE JUDGMENT DATE:

29 May 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr V. Conomos, solicitor
of Pike Pike and Fenwick

RESPONDENT
Mr S. Patterson, solicitor
of Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

29 May 2007

10167 of 2007 Ergo Architecture & Interiors v Waverley Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

Background.

1 This appeal was lodged against condition 2 (a) imposed by council on a development consent (DA 586/2006) for alterations and additions to an existing semi at 38 Langlee Avenue, Waverley. The proposed works included a second-storey addition and a garage.

2 The subject condition required:

2. General Modifications

The proposal shall be amended as follows:
(a) The proposed garage in the front portion of the building and all associated works are to be deleted from the approved plans, as it is contrary to Council's policy. In this regard the ground floor front facade is to be maintained.

3 This site is located on the western side of Langlee Avenue, just south of its intersection with Birrell Street. It has a width of 6.135 m and a depth of 35.545 m. There is a existing part one and 2 storey semi-detached dwelling on the site.

Planning Controls.

4 The subject site is subject to the provisions of the Waverley LocalEnvironmental Plan1996, under which the site is in the Residential 2(a) zone and the proposal is permissible with consent.

5 Clause 3- Specific Aims, subclause 7 (f) requires developments "to improve the amenity of residential areas". Also, clause 10 - Objective (b) of the Residential 2 (a) zone is "to maintain and improve the amenity an existing characteristics of localities predominantly characterised by dwelling houses."

6 The site is also subject to the provisions of the Waverley Development Control Plan No 1996, under which the following clauses are particularly relevant.

7 Part D, clause 5.7 deals with Vehicular Access and Parking, and includes the following relevant objectives:

(a) To ensure that the design and size of off-street car parking facilities does not unreasonably detract from the appearance and quality of the dwelling house or streetscape;
(b) To maximise pedestrian and vehicle safety;
(c) To minimise loss of on street car parking; and …

8 Clause 5.7.2 provides:

Table

5.7.2 Garages and carports are designed not to detract from the architectural integrity of the dwelling

Garage/carport design is integrated with the design of the dwelling. Sites are not to be excavated to accommodate garages/carports that are not integrated into a dwelling. No part of a building is to be altered or demolished to primarily to provide car parking except where topography or appropriate building designs allows.

9 Part I, clause 5 deals with Urban Design, Streetscape and Heritage Conservation and requires:

5.2(a) All car accommodation is to be located behind the front building line.
5.2(b) No part of the building is to be altered or demolished to primarily provide car parking except with topography or appropriate building design allows.

The Evidence

.

10 For the hearing, Ms K Lucas (Senior Statutory Planner - Waverley Council) presented a position paper outlining her concerns about unsatisfactory elements of the proposed garage. Mr A Betros (Consulting town planner) provided an assessment supporting amended proposal.

11 The amended proposal involves the proposed garage being completely contained within the existing building structure, with the existing 2 French doors being widened by 1.1 m to allow vehicular access and this opening to be covered by a matching patterned ‘ tilt-a-door. The pattern is to present to the street as 3 French doors. The amendments also included the front fence entry arrangement be altered to retain the existing vertical timber fencing alignment and include 2 inward opening gates.

12 It is apparent from Ms Lucas’ initial assessment that the streetscape impact of the proposed garage is the primary issue. She said that the subject building on the site is one of a pair of single storey semi-detached dwellings constructed without provision or consideration of on-site parking. Therefore, the attempt to retrofit car parking to the building was likely to result in a significant loss of streetscape amenity.

13 Furthermore, as the proposal included a "mock" façade, for which no specifications have been provided to ensure a reasonable degree of certainty that this outcome can be achieved and past experience has resulted in unsatisfactory results, when the patterned door was subsequently unavailable.

14 Mr Betros explained that the amended proposal was feasible based on the detailed garage door specification contained in Exhibit C. Also, that this proposal is consistent with the street safe, considering that 72% of other dwellings in this street have off-street parking, which is obviously visible in the streetscape.

Findings.

15 Having considered the evidence, and undertaken a view, I am satisfied that this amended plan for the internal garage demonstrates reasonable compliance with the provisions of the relevant controls.

16 Langlee Avenue contains an angled horizontal road alignment, whereby the visual catchment of No 38 in the streetscape is well-defined. This section contains approximately 72% front garage-type structures, some visually prominent. However, I am satisfied that the proposed garage, which is within the existing building and does not require alterations to the external building facades or roofline, is consistent with the streetscape.

17 Insofar as concerns were expressed about the availability of the patterned door, I accept the applicants evidence that this type of door is readily available. Accordingly, I consider this can be covered by way of a deferred commencement condition requiring these details/specifications to be provided prior to the issue of any Construction Certificate.

18 I am satisfied that the amended proposal represents an appropriate design, which does not detract from the appearance and quality of the dwelling house or the streetscape, in its specific locational context. In my assessment then, it reasonably satisfies the provisions of cl 5.7.2 of the DCP. As the proposal does not involve any significant alterations to the building structure, particularly the street facade or roofline, I am also satisfied that it demonstrates reasonable compliance with the relevant provisions of cl 5.2 of the DCP.

19 Furthermore, the construction of the footpath crossing will not result in any loss of on-street parking, due to the position of the existing “No Parking” area. Instead it will provide one additional off-street car parking space, in an area where parking demand is high, due to the proximity of the Waverley Bowling Club. It is however likely that the new footpath crossing will incorporate a safer footpath alignment for pedestrians, considering the existing right-angled bend that would be eliminated.

20 For these reasons then, I am satisfied that the approval of the amended proposal results in a satisfactory balance between the competing private interest and the public interest, which includes reasonable compliance with provisions of the DCP, in the locational circumstances.

1. The appeal is upheld.
2. The development consent for DA No 586/2006 for alterations and additions to the dwelling at 38 Langlee Avenue, Waverley is amended as set out in Annexure A.
3. The exhibits may be returned except for 3, A and C.

___________________

R Hussey
Commissioner of the Court
Dlc/ljr